S.K. Mal Lodha, J.
1. By this appeal under Order XLIII, Rule 1(a) CPC, the plaintiffs-appellants question the correctness of the order dated March 31, 1981 of the Additional District Judge, Bhilwara, by which he directed for return of the plaint to be presented to the court in which the suit should have been instituted.
2. Copies of the original plaint, written statement, amended plaint amended written statement, application under Order VI, Rule 17 CPC and issues were placed for my perusal by the learned Counsel for the appellant. The correctness of these copies was not disputed by the learned Counsel for the respondent.
3. The plaintiff-appellant Laxman Singh instituted a suit for Rs. 10010/- against the defendant-respondent alleging that his unmarried son Mahendra Singh was insured with the defendant for Rs. 10000/- by two life insurance policies of Rs. 5000/- each, that Mahendra Singh died on June 17 1969, and that after the death of Mahendra Singh, demand for the amount of the sum assured was made from the defendant, but it was not paid Therefore, he instituted the suit for Rs. 10010/-, consisting of Rs. 10000/-being the sum assured and Rs. 10/- as expenses against the defendant in the Court of District Judge, Bhilwara on May 2, 1972. In para 6 of the original plaint, it was inter alia stated that part of the cause of action arose on June 17, 1969 when Mahendra Singh died and that as the Branch Office of the defendant is situated at Bhilwara, the court has jurisdiction to hear the suit. The defendant filed the written statement on July 25, 1972 contesting the suit. Para 6 of the plaint was denied stating that no part of cause of action has accrued to the plaintiffs against the defendant. It was, however, stated that 'the jurisdiction of this Hon'ble court however is not 'challenged'. Issues were framed on January 31, 1973. Thereafter, an application was moved on behalf of the defendant on March 30, 1973 for amendment of the written statement. It was stated in the application that in para 6 in place of the words 'the jurisdiction of this Hon'ble court however is not challenged', permission may be accorded for substituting 'this Hon'ble court has no jurisdiction to hear and decide this suit.' Permission for amendment of the written statement was accorded and the amended written statement was filed on November 6, 1975. In the amended written statement in para 19, an objection was also raised that the plaintiff Laxman Singh is not competent to bring the suit in respect of Policy No. 6998127 dated January 13, 1964 as at the time of death, the deceased had left his mother as heir according to Schedule I of the Hindu Succession Act and the claim in respect of this policy deserves to be dismissed on this score alone. On this objection being raised, the learned District Judge by his order dated April 15, 1977, permitted the plaintiff to amend his plaint by impleading Smt. Deep Kanwar w/o Laxman Singh mother of Mahendra Singh as plaintiff No. 2 and the amended plaint was filed on April 16, 1977. On the basis of the amended written statement, issue No. 4 was framed by the learned District Judge on November 1, 1978, which is as under:
Whether this Court has jurisdiction to hear and decide the suit ?
4. The plaintiffs examined PW 1 Deep Kanwar and PW 2 Laxman Singh in support of their claim. The defendant examined DW 1 Motilal, DW 2 Shiv Kumar Sharma, DW3 Bhikam Chandra, DW 4 Dr. Janki Prasad, DW 5 Dr. Mahendra Saxena and DW 6 Dr. S.B. Joshi. After trial, the learned Additional District Judge has recorded the following findings:
(1) that Mahendra Singh was the unmarried son of the plaintiffs,
(2) that plaintiff No. 2 Salt. Deep Kanwar has a right to bring the suit in respect of both the policies and plaintiff No. 1 Laxman Singh was entitled to bring the suit in respect of policy No. 25349018, which was issued in 1968 as nominee. The contract under the policy was not null and void for the reason that in the personal statement made by the assrued Mahendra Singh at the time of making the proposal for insurance he suppressed that he was suffering from heart disease, pulpitation and breathlessness,
(3) that the suit was not triable by the Court at Bhilwara where it was instituted,
(4) that the suit of the plaintiff is within limitation under Article 44 of the Limitation Act (No. XXXVI of 1963).
5. In view of the findings recorded by him in respect of issue No. 4, the learned District Judge ordered for the return of the plaint in the court where it should have been instituted, by his judgment dated March 31, 1981. The plaintiffs have filed this appeal under Order XLIII, Rule 1 CPC against the order of return of the plaint for presentation to a proper court. On January 20, 1982, learned Counsel for the parties stated that they are in agreement that this appeal may be finally disposed of without requisitioning the record.
6. I have heard Mr. D.S. Shisodia, learned Counsel for the appellants and Mr. S.R. Singhi, learned Counsel for the respondent.
7. Learned Counsel for the appellants has assailed the findings of the learned Additional District Judge on issue No. 4. In the first instance, he submitted that as the Life Insurance Corporation of India has its Branch Office at Bhilwara, the defendant will be considered to carry on business there and as such, under Section 20(1)(a) CPC, the suit could be tried and heard by the Additional District Judge, Bhilwara. In support of his contention, he relied on Smt. Brindra Devi v. Cooperative Assurance Co. Ltd. AIR 1944 Cal 1, Calcutta Chemical Co. v. D.K. Barman : AIR1969Pat371 and Surinder Kumar v. Bengal National Textile Mills AIR 1978 P & H 156.
8. On the other hand, Mr. S.R. Singhi urged that in view of the Explanation as no cause of action has arisen at the place where the Branch Office was located, the suit could not be entertained by the learned Additional District Judge despite the fact that the defendant has its Branch Office at Bhilwara. He invited my attention to Bhola Nath v. Empire of India Life Assurance Co. AIR 1948 Lah. 56 Bharat Insurance Co. Delhi v. Wasudeo Ramchandra AIR 1956 Nag 203, Nedungadi Bank Ltd. v. Central Bank of India Ltd. : AIR1961Ker50 , Smt. Kamla Chopra v. Life Insurance Corporation of India AIR 1975 Del 15 and State Bank of India v. Neelam Sharma AIR 1980 P & H 251.
9. I do not propose to examine the controversy raised in regard to the question whether the location of the Branch Office of the defendant at Bhilwara enables the Additional District Judge to entertain, try and decide the suit instituted by the plaintiffs, in view of the conclusion to which 1 have arrived at that the plaintiffs cannot be allowed to avail of the objection regarding jurisdiction of the Court of Additional District Judge, Bhilwara because, in the facts and circumstances of this case, they will be deemed to have waived that objection and acquisced in the institution of the suit at Bhilwara.
10. A contention was raised in B. Petroleum Co. v. P.J. Pappu AIR 1966 SC 634 that it was open to the defendants to waive the objection, and if they do so, they cannot subsequeatly take the objection. In that connection, it was obse-ved as under:
As a general rule, neither consent nor waiver nor acquiescence can confer jurisdiction upon a Court, otherwise incompetent to try the suit. But Section 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver under Section 21 is limited to objections in the appellate and revisional Courts. But Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Section 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it.
(Emphasis supplied by me)
It was further observed by their Lordships as follows.If the defendant allows the trial Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection, and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection.
Having regard to the peculiar circumstances of that case, it was held that no conduct of the defendants which amounts to a waiver, or which precludes (hem from raising the objection was established.
11. Sections 17 and 20 CPC as existed then were examined in Ramappa v. Ganpat ILR 30 Bom 81. In that case, the plaintiff filed a suit against three defendants in the Court at S. Defendant No. 1 lived within the jurisdiction of that Court and defendants 2 and 3 lived within the jurisdiction of the Court at B. No. application was made by the plaintiff under Section 17 CPC for leave to sue defendants 2 and 3; on the other hand, these defendants, though they had taken an objection in their written statement that the Court had no jurisdiction, did not apply under Section 20 of the Code. The Court allowed the claim against defendants 2 and 3 who did not reside within its jurisdiction. On appeal by defendant 3 the District Judge set aside the decree on the ground of want of jurisdiction and ordered that the plaint be returned for presentation to the proper Court. The plaintiff appealed to the Bombay High Court. The order of the District Judge was reversed. It was held that defendants 2 and 3 not having made any application under Section 20 CPC, they must be deemed to have acquiesced in the institution of the suit and that the Suit could not be said to have been improperly instituted against them in Court. The principle of acquiescence in institution was recognised as early as in 1905 A.D. It is clear from the provisions of Section 21 CPC that 'the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merit,'. Reference in this connection may be made to Kiran Singh v. Chaman Paswan : 1SCR117 .
12. The original plaint was filed on May 2, 1972. It was specifically mentioned in para 6 that the court of District Judge, Bhilwara has jurisdiction to try the suit as the Branch Office is situated at Bhilwara. In the original written statement, it was not disputed that the court has no jurisdiction but on the other hand, as is clear from para 6 of the written statement it was specifically stated that the jurisdiction of the Court at Bhilwara is not challenged. The issues were framed on January 31.1973. Permission for amendment of the written statement was accorded and the amended written statement was filed on November 6, 1975. The plaintiff examined his witnesses. The defendant examined its witnesses in the Court of District Judge, Bhilwara and some witnesses were also examined on commission at Bombay' From these events, it is apparent that the respondent did not insist on the decision of the question relating to the territorial jurisdiction of the District Judge, at Bhilwara. Until the conclusion of the trial, no steps were taken by the defendant to get the question of territorial jurisdiction decided first. It therefore, follows that though according to the defendant, the District Judge at Bhilwara lacked territorial jurisdiction still it participated in the trial led evidence and examined its witnesses. It was held by a Division Bench of this Court in Raman Lal v. Ram Gopal ILR 1954 Raj. 262, which was a case of non-resident that where a defendant, who is a non-resident foreigner, appears in foreign court not only to protest against jurisdiction but also pleads on merits, such an appearance amounts to voluntary submission on his part, and his protesting the jurisdiction in such a case when ha also pleads on the merits does not detract from the principle of submission in any way. It was observed as under:
When a non-resident foreigner voluntarily submits to the jurisdiction of a court, it is no longer open to him to object to the jurisdiction of chat court, the principle being that a court has jurisdiction in an action over any person who has by his conduct precluded himself from objection to its jurisdiction.
13. The reasons given in the Rajasthan case may usefully be adopted in this case.
14. In these circumstances the learned Additional District Judge should not have been given effect to the objection relating to the territorial jurisdiction after the fall trial of the suit on merits for, by the conduct narrated above, the defendant has waived it and acquisced in the institution of the suit at Bhilwara. It is not the case of the respondent that there has been a prejudice on merits. The objection as to territorial jurisdiction is technical and as such, the learned Additional District Judge should not have given effect to the objection relating to jurisdiction after the conclusion of the trial. For these reasons decision on issue No. 4 by the learned Additional District Judge that the plaint should be returned for presentation to the proper court, cannot be sustained. It is, accordingly, set aside. It is held that the defendant has waived the objection relating to the territorial jurisdiction and acquisced in the institution of the suit at Bhilwara. The objection of lack of territorial jurisdiction cannot be given effect to.
15. The next question is as to what order and direction should be made in this appeal.
16. Learned Counsel for the parties are in agreement that in view of the aforesaid findings, the order dated March 31, 1981, of the Additional District Judge may be set aside and a direction may be given to him to record a judgment and decree in the case on evidence, which is already on the record after hearing arguments of the parties.
17. As there is no decree of the trial court, I allow the appeal, set aside the order dated March 31, 1981 of the Additional District Judge, Bhilwara, ordering for return of the plaint for presentation to the proper court and direct him to afford an opportunity of hearing to both the parties, and record a judgment and decree in the case on the basis of the material which is already on record. The learned Additional District Judge (trial court) will decide all the issues except issue No. 4. The defendant will not be permitted to re-agitate the question regarding jurisdiction in the trial court. In the circumstances of the case, the parties are left to bear their own costs of this appeal.